Proskauer on International Litigation and Arbitration:
Managing, Resolving, and Avoiding Cross-Border Business or Regulatory Disputes
- The analysis the court will undertake in determining whose law applies is in some measure unpredictable both in terms of the analysis the courts will choose to apply and in the outcomes that will flow from applying the analysis. In the government interest analysis, for example, it involves the difficult task of determining, assessing, and weighing the governmental interests underlying different, and foreign, states’ laws. Proving what a non U.S. government’s interest is in the application of its laws is particularly difficult given that the very inquiry may be an unfamiliar one to the non-U.S. state and not part of its jurisprudence.
- Moreover, as the non-U.S. law proponent, there is no guarantee that the court will apply the law in the desired way given the court’s freedom to conduct independent and even undisclosed research into the substance of that law.
- As seen from the discussion above, the costs and time in preparing for and litigating choice of law disputes – both the question of what law applies, and the question of what that law is – may be significant.
- Practice Tip: For these reasons, a party should consider stipulating on the forum law if there is more to be gained by avoiding the costs and distractions in litigating the choice of law issues than what is lost in not applying a non-U.S. state’s laws.
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